Waldron v. Skelly Oil Co.

• Decision Date: 26 November 1951
• Docket Number: Civ. A. No. 7921.
• Citation: 101 F. Supp. 425
• Parties: WALDRON v. SKELLY OIL CO.
• Court: U.S. District Court — Eastern District of Missouri

101 F. Supp. 425

WALDRON v. SKELLY OIL CO.

Civ. A. No. 7921.

United States District Court E. D. Missouri, E. D.

November 26, 1951.

Llyn Bradford, Rolla, Mo., Jean Paul Bradshaw, of Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Mo., John F. Low, of Fields & Low, Lebanon, Mo., for plaintiff.

Norris H. Allen, of Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, Mo., Breuer & Northern, Rolla, Mo., for defendant.

HARPER, District Judge.

Plaintiff filed an action in the Phelps County Circuit Court against three corporations, two of which, Rolla Uregas Corporation and Uregas Service, Inc., were resident corporations, and one of which, the Skelly Oil Company, was a non-resident corporation. On April 30, 1951, trial was started in the case and the jury was qualified. After the jury had been sworn the attorney for the plaintiff proceeded to make the opening statement to the jury. The first statement made by the attorney was to dismiss as to the two resident corporations. Whereupon, the court said: "Plaintiff dismisses his petition as to Rolla Uregas Corporation and Uregas Service, Inc."

Immediately following the dismissal, the attorney for the two resident corporations entered his appearance as an attorney for the Skelly Oil Company, inasmuch as he had been working with Mr. Allen, the attorney for the Skelly Oil Company. The plaintiff's attorney then proceeded to make his opening statement. During the opening statement Mr. Allen, one of the attorneys for the defendant, ascertained that the Skelly Oil Company was a non-resident corporation, and upon the completion of the opening statement by plaintiff's attorney, stated that during the opening statement he had discovered that his client was a Delaware corporation, and the cause was removable to the Federal Court. He sought permission from the court to be granted an opportunity to do so. The court refused to grant such permission and the trial proceeded. After the trial was completed the attorney for Skelly Oil Company filed a removal petition, and the plaintiff now seeks to remand.

In 1948 Congress rewrote the removal statute, and in 1949 it was further amended. Section 1446(b), 28 U.S.C.A. in part states as follows: "If the case stated by the initial pleading is not removable, a petition for removal may be filed within twenty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."

The new removal statute was enacted primarily for the purpose of establishing uniformity of procedure with respect to removal and uniformity of time within which removal could be taken. When the plaintiff's attorneys dismissed as to the resident corporations, the action became one which was removable to the Federal Court, and under Section 1446(b) the attorneys for the defendant had twenty days within which to remove the cause of action.

Twenty days had not elapsed before the removal was filed. We must turn to the decisions under the former removal statutes to determine the effect of what happened in the present case, inasmuch as there have been but few decisions since the statutes have been changed, and since the general principle in the old, as well as the new, is the same. The courts have repeatedly held that when a case becomes removable during the process of a trial, the right to remove may be waived by proceeding with the trial without objection, but that if timely objection is made the record is preserved and what happened thereafter does not prevent the removal. In Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, loc.cit. 100, 101, 18 S.Ct. 264, 267, 42 L.Ed. 673, a case where removal was sought during the progress of the trial, the Supreme Court said:

"This provision clearly manifests the intention of congress that the petition for removal should be filed at the earliest possible opportunity. * * *

"The reasonable construction of the act of congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated by circumstances wholly beyond his control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right; and to consider the statute as, in intention and effect, permitting and requiring the defendant to file a petition for removal as soon as the action assumes the shape of a removable case in the court in which it was brought.

"The result is that, when this plaintiff discontinued his action as against the individual defendants, the case for the first time became such a one as, by the express terms of the statute, the defendant railway company was entitled to remove; and therefore its petition for removal, filed immediately upon such discontinuance, was filed in due time."

The fact that the defendant in the Powers case continued...